Chapter
6:
Policy Work, Legislative Advocacy and Litigation

Formulation
of policies, development of legislation and litigation are closely related
activities. Policies are the general plans or courses of action outlined
by governments, political parties, organizations, and so on, which are
intended to shape, influence or determine decisions and actions. The
policies of local and national governments and parties set the direction
and parameters for the formulation of laws, governmental programs and
budgets. Litigation is the process of using the legal system to make
claims and seek administrative or judicial decisions to help clarify
or modify laws and practices.

Human rights
standards can be applied in each of these activities. In general terms,
where policies are developed within a human rights framework, it is
more likely that corresponding laws will protect and fulfill human rights.
Likewise, where such laws and programs are designed and implemented,
people are less likely to need judicial help to secure their rights,
thus obviating expensive and time-consuming litigation. Where laws and
practices violate human rights, activists can use litigation to try
to claim their rights, help clarify the content of specific rights through
local and national courts and administrative agencies, or as a tool
for law reform.

Are
ESC Rights for Courts or Policy-Makers to Enforce?

Although the
Universal Declaration of Human Rights and other international human
rights instruments maintain that civil, political, economic, social
and cultural rights are indivisible, historically civil and political
rights have been seen as matters to be decided through judicial processes,
while economic, social and cultural rights have been relegated largely
to the "political" arena. A legal scholar 48 explains
that the tendency to separate ESC from civil and political rights is
reflected in constitutions around the world, where the rights are assigned
different legal and enforceability status: fundamental rights (those
found in many Bills of Rights) and directive principles of state
policy generally correspond to civil and political rights and ESC
rights respectively. The main difference between fundamental rights
and directive principles is that the former are typically considered
"justiciable"; that is, questions concerning their fulfillment or violation
are capable of being decided by a court of law. Directive principles
assign responsibility for the fulfillment and enforcement of the rights
in question to legislators, parliaments or other political fora for
policy and programmatic formulation.

The relegation
of ESC rights to legislators and policy-makers in most countries makes
legislative advocacy and policy work on economic, social and cultural
rights particularly important. Furthermore, all governments have more
or less extensive programs and policies in the ESC areas. The challenge,
therefore, may lie not so much in convincing governments and legislative
bodies to formulate policies and legislation establishing programs related
to ESC aspects of life, but rather to persuade and pressure them to
adopt and utilize human rights standards to help guide and monitor these
activities.

The question
of the nature and extent of justiciability of ESC rights, and the confusion
and controversy surrounding this issue, has implications for legislative
and constitutional advocacy on these rights. It is arguable that because
most constitutions leave ESC rights out of the realm of "fundamental"
-- and thus "justiciable" -- rights, an important area of national-level
advocacy would be seeking constitutional amendments to enshrine ESC
rights as fundamental rights, thus increasing the ability of individuals
to make rights claims in constitutional or other courts. For example,
with the recent change of government in South Africa, a rare opportunity
arose for the development of a constitution that includes ESC rights
within its bill of rights. Many human rights, development and public
interest organizations formed a coalition to advocate for the incorporation
of these rights and were, to varying degrees, successful.

The Limburg
Principles state that, "Although the full realization of the rights
recognized in the Covenant [ICESCR] is to be attained progressively,
the application of some rights can be made justiciable immediately while
other rights can become justiciable over time."49
The principles go on to explain, "States parties shall provide for effective
remedies including, where appropriate, judicial remedies."50
In keeping with these principles, some activists argue that the reluctance
of courts to accept and rule upon ESC rights cases is largely a matter
of will.51 Furthermore, some argue that it is the
state's responsibility to recognize and develop mechanisms for judicial
review of ESC rights cases; if they have not begun to progressively
realize this responsibility, they are not complying with their obligations.

In undertaking
policy work, legislative advocacy and litigation, it is important that
NGOs not strengthen the perceived dichotomy between the justiciability
of ESC rights and that of civil and political rights. Policy work should
be based on the assertion that government policies developed in the
areas of economic, social and cultural affairs are not matters of state
generosity, but rather are obligations of the state to set agendas and
programs for fulfilling and protecting human rights. Legislation should
conform to rights principles and, where possible, provide for the development
of mechanisms for claiming rights through courts, tribunals and other
fora. Litigation should also be initiated on ESC issues. Where courts
will not recognize such cases as rights cases, activists can link their
arguments to other rights which are recognized by the courts, such as
freedom from discrimination, security of the person, right to life,
and so on, or use "metalegal" action to pressure courts to recognize
a specific right. These strategies and tools are discussed in greater
detail in the following sections.

Policy
Work

NGOs can apply
human rights standards to the development and evaluation of policies
in a number of ways. The Caribbean Initiative's efforts to secure the
involvement of government officials, legislators and representatives
of NGOs in the review of national programs and legislation using the
matrices for human rights standards (see chapter
5 and Appendix C) illustrates one
way in which the human rights framework can be a tool for policy formulation.
NGOs can also draft papers proposing local and national policies and
priorities related to different ESC sectors, such as education, housing,
health. The adjacent example illustrates the role that the Legal Resources
Centre has played in the formulation of land policy in South Africa.

The
Legal Resources Centre's Involvement in South Africa's Land Reform
Policies

The
Legal Resources Centre (LRC) continues today the work with rural
and urban communities on land and housing issues it began during
the apartheid era. It seeks to enforce and extend the rights of
ownership and tenure to dispossessed people through legal advice,
litigation, negotiation, and advocacy. Its years of commitment
have established the Centre's credibility with communities and
other organizations with which it has collaborated. With the change
in government, the Department of Land started cooperating with
the LRC and other NGOs with direct land rights and community development
experience to formulate a vision and policy for land reform. The
LRC participated in the drafting of and commenting on the Land
Affairs Green Paper which sets out the vision and implementation
strategy for South Africa's land policy. The latter sought to
address the legacy of dispossession of the vast majority of the
population -- 90% of the population owned only 13% of the land.
The land reform policy has two main parts: land restitution for
people who lost land through the many years of apartheid, and
land redistribution to those who never had any. In developing
their vision of land reform, LRC lawyers have been particularly
influenced by provisions of the U.N. Sub-Commission on the Prevention
of Discrimination and Protection of Minorities Resolution 1994/39
on forced evictions and have persisted in seeking legislation
which meets the standards of this resolution.

The budgetary
process is one of the single most important activities undertaken by
government and legislative bodies to implement policies. Program participants
felt that human rights standards can be a powerful tool for reviewing
budgetary plans and lobbying for specific allocations of monies.

As with the
other phases of policy and legislative formulation and implementation,
access to information and transparency are essential in the budgetary
process. Developing Initiatives for Social and Human Action (DISHA)
in Gujarat, India has focused on expanding participation in the budgetary
process as a tool for advancing the rights of poor and tribal people
in that state. The following example describes how it has done this.

DISHA
Works for Transparency and Participation in Budgetary Process

Through
its budget analysis work, DISHA focuses on expanding popular participation
by "de- mystifying" the process of budget development and allocation
of monies. The study and analysis of the Gujarat state budget
allocations and expenditures reveals the intentions and priorities
of the government. Budget analysis has the potential of holding
elected and appointed parliamentary and government officials accountable
for the articulated policies of the government and parties.

To enhance
transparency and participation DISHA does a detailed analysis
of the budget for each budget session and disseminates a written
analysis to policy-makers, the press, other NGOs and community-based
organizations. DISHA has contacted many NGOs within the state
and in other states to share this information and the skill of
budget analysis in order to reach and involve more poor people.
It engages with other NGOs to review the government's progress
report on the disbursement of funds. It has also collaborated
with other NGOs in the drafting of an alternative budget to share
with upcoming Assemblies. During the workshop, DISHA's representative
spoke about the potential usefulness of human rights standards
as a lens through which to analyze budget allocations and expenditures
and as a tool for developing alternative budgets. (See Appendix
D and chapter 3 for more
information about DISHA's budget analysis work.)

Legislative
Advocacy

International
human rights standards can be used as a lobbying tool to remind states
parties to human rights treaties, such as the ICESCR, of their obligations
under international law and, specifically, their obligation to develop
legislation to progressively achieve economic, social and cultural rights.
It is essential for the fulfillment of all human rights that legislation
be adopted which encompasses and enforces human rights standards. Article
2 of the International Covenant on Economic, Social and Cultural Rights
specifically mandates that state parties adopt legislative measures
toward the fulfillment of their obligations.

Human rights
standards can also be used as a tool for identifying where legislation
needs to be drafted or amended. The matrices used by the Caribbean Initiative52
establish a process for comparing existing legislation with human rights
standards and making recommendations for amending laws or drafting new
legislation consistent with the standards.

Legislative
advocacy ought also to be directed to establishing judicial or quasi-judicial
fora for the review of ESC rights claims. For example, as part of its
land rights work, the Legal Resources Centre (LRC) learned of its client
communities' desire and need to have a mechanism for claiming their
right to land. The LRC concluded that a specialized and separate judicial
structure should be established to deal with the restitution process.
Toward this end, the LRC was intimately involved with the drafting and
review of legislative measures for the implementation of land restitution
policies, including the Restitution of Land Rights Act which established
the Land Claims Court.

Litigation

Litigation
can be used to advance ESC rights in several ways. It can be employed
to make individual human rights claims, to raise public awareness about
problems related to ESC rights, to help define the content of rights,
and as a long-term strategy for law reform. Workshop participants agreed,
however, that litigation is just one tool, and that it is most effective
when undertaken in cooperation with the community and in conjunction
with other advocacy strategies. The Charter Committee on Poverty Issues
in Canada, for example, believes strongly that its litigation must to
a large extent be defined and driven by those people whose situation
the litigation strives to affect53. It therefore requires
at least 50% representation of poor people on the "project teams" it
organizes related to pending litigation.

The Legal
Resources Centre also believes that it must maintain a balance between
the use of litigation and other methods of working with, and on behalf
of, communities. It is wary of the danger of developing too "legalistic"
an approach, where the organization and communities become heavily dependent
on the legal system for defining and exercising their rights. The LRC's
primary concern is to ensure that its strategies are consistent with
the needs of the communities and, for that reason, it needs to coordinate
its legal activities with community development work. The LRC strives
to identify and decide with client communities which matters to litigate
and works to ensure that victories and losses are translated into impact
on the ground. This involves educating people about their legal rights
and informing communities about changes in the law so that they will
exercise their rights and advocate for legal changes to increase their
enjoyment of rights.

Where litigation
is linked to community outreach and other forms of involvement, it can
be a useful tool for organizing. A legal case can create a focal point
for attention, raising awareness about the issue and potential solutions.
The heightened profile of a case can generate community excite- ment,
involvement and support. Workshop participants with experience in using
legal cases as a mobilization tool stressed that it is very important
for activists to be honest with clients and members of the community
about potential outcomes and any perceived risks of failure. They warned
that an organization's credibility can be lost if these dimensions are
not fully and clearly shared.

Litigation
of ESC rights cases can also be used as part of a longer-term strategy
for law reform. In this context, activists choose to litigate a case
based on its capacity to affect changes in the law which, in turn, will
positively impact people's ability to exercise their rights.

Litigation
can also be used to demonstrate the justiciability of ESC rights. One
strategy is to argue that human rights are indivisible and then link
ESC rights to civil and political rights. For instance, the Canadian
organization, the Centre for Equality Rights in Accommodation (CERA),
seeks to demonstrate the link between "security of the person" as recognized
in Canada and the right to food and housing. It believes that it should
be possible in a country such as Canada, where security of the person
is constitutionally guaranteed, to demonstrate that this security is
infringed if a person has no home or is unable to eat.

As discussed
in Chapter 2, other possible ways of advancing ESC rights claims would
be to link ESC rights to the rights to participation, non-discrimination
and the right to life. However, participants caution that efforts to
use civil and political rights provisions to advance ESC rights claims
should be very clearly and carefully developed. Such claims should consider
whether or not the end result will strengthen the claim being made as
well as help clarify the content of the right(s) in question.

Where an organization
believes that it has a fairly clear understanding of the core content
of a right and corresponding government obligations, it might look for
a "test case" or an opportunity to bring litigation by which to seek
the court's acknowledgment and confirmation of that aspect of the core
content or state obligation.

Predictably,
the lack of elaboration of ESC rights standards makes it difficult to
use them as guidelines for the development of policies, plans and legislation
and inhibits the willingness of courts to hear a case. Currently, the
content of specific entitlements related to labor rights are the most
clearly elaborated and thus useful for the design and implementation
of local and national policies and legislation. As the standards for
the right to housing and for the right to health develop, they will
be increasingly useful. However, considerable ambiguity remains in the
specific content of most ESC rights.

In some countries,
there is little trust in the legal system and its ability to affect
change in the ESC sphere, for a number of reasons, including: a relative
lack of power or independence of the judicial system; the "elite" position
of justices and lawyers which may result in an unwillingness to accept
cases addressing questions of distributive justice; and the generally
"static" mind set of courts on the question of justiciability. In addition,
changes in governments or regimes and fluid party politics are problems
encountered in all human rights work. When a country undergoes a constitu-
tional or governmental change, advances which have been made may be
undermined.

Although it
has been echoed several times, it bears repeating that the lack of transparency
and access to information in many countries pose considerable challenges
to the formulation of policies and programs for the fulfillment of ESC
rights. This is clearly an area of work towards which a great deal more
study, attention and advocacy needs to be directed.

[I]f the court feels that it is unable
to discern the factual matrix within which an issue has been placed
before it, it may either ask the government to appoint a commission
and report the result to the Court or appoint such a commission itself,
asking the commission to report back its findings to the Court. Such
commissions have been appointed in complex cases concerning the environment
and land rights. Wherever such a commission has been appointed, they
are expected to pursue their investigative tasks in a manner consistent
with due process; and, their findings may be challenged and controverted
by affidavit evidence -- leaving it to the courts to make up their
mind on the truth of the findings of the commission. Once the Court
has determined the facts, it may conclude that there is no straight
forward remedy. Especially in land settlement and environment cases,
it may feel that some kind of schematic remedy needs to be devised.
This may entail a report back requirement to the Court which may in
turn appoint a commission to oversee the fulfillment of the remedy.